CASE NAME- THAKORLAL D VADGAMA vs STATE OF GUJARAT
Case No.- Criminal Appeal no. 18 of 1970, decided on May 2, 1973 (From Gujrat High Court)
ADVOCATES- For Appellant – H. Dhebar and S. K. Dholakia
For Respondent- L. Kohli and S. P. Navar
JUDGES- K.K Mathew, I.D DUA, JJ
ACTS- Section 361 Of Indian Penal Code and Section 366 of Indian Penal Code
The case of Thakorlal D. Vadgama vs. State of Gujarat stands out as a significant judgment in criminal law, particularly for its detailed interpretation of kidnapping and abduction under the Indian Penal Code (IPC). This landmark decision sheds light on Section 361 of the IPC, which addresses the crime of kidnapping from lawful guardianship. According to this section, the offense is defined by several key elements:
1. A person must be taken or enticed away.
2. The person in question must be a minor or someone who is mentally unsound.
3. The act of taking or enticing must occur from the care of their lawful guardian.
4. This action must be carried out without the guardian’s consent.
The intent behind this provision is to protect minors and individuals with mental disabilities from exploitation, while also safeguarding the rights of guardians to retain lawful custody and control over their wards. This legal safeguard ensures that unauthorized individuals cannot unlawfully remove those under guardianship, thereby maintaining the safety and well-being of vulnerable individuals.
In the case at hand, Thakorlal D. Vadgama was initially convicted by the Sessions Court under Sections 366 and 376 IPC. However, the High Court later reviewed the case, overturning the conviction for Section 376 but upholding the conviction for Section 366 IPC. This case commentary will explore the implications of this judgment, examining its impact on the interpretation of kidnapping laws and the broader legal principles it reinforces.
Legal Provisions
Section 361- Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. [1]
Section 366– According to the Indian Penal Code, any individual who kidnaps or abducts a woman with the aim of compelling her into marriage against her wishes or into unlawful sexual relations, or who uses threats or authority to induce a woman to go to a place where she might be coerced or persuaded into unlawful sexual acts, can face imprisonment for up to ten years and a fine. [2]
Facts
In this case, the victim, Mohini, who was 15 years old, was kidnapped and raped by the appellant. The appellant was an industrialist who owned a factory at Bunder Road in Jamnagar. Mohini’s parents, who were living temporarily near his factory, went to him looking for work. On December 18, 1965, her birthday, he gave her a Parker pen, and also purchased a skirt, silver waist band worth Rs. 12. Mohin, kept the pen for a few days but returned it after her mother told her to.
The appellant then planned a trip to Baroda with Mohini and her father, where he convinced her father that he will offer him a job as a factory manager. Later, during Christmas, he planned another trip to Bombay with them, and it was during this trip that he allegedly had sexual intercourse with Mohini.
In the summer, he took Mohini, her parents, and his own daughter, Rekha, on another trip to Mahabaleshwar and then after two days to Mount Abu. During this trip, Mohini’s mother began to suspect that the appellant was having an inappropriate relationship with Mohini and confronted her. The appellant swore by God that Mohini was like his own daughter, Rekha.
Despite his promises, he continued to meet Mohini after school and took her to his bungalow where he had sexual intercourse with her. When Mohini’s parents found out, they scolded her and made sure she was not left alone. Her mother even wrote a letter to the industrialist on September 26, 1966, asking him to stop contacting Mohini.
The appellant claimed that Mohini wrote him letters about being mistreated by her parents and expressing her desire to leave home. On January 16, 1967, instead of going to school, Mohini went to the appellant’s factory as previously arranged. There, she was taken to a room and made to write letters, under dictation, complaining about her parents’ abuse. It was alleged that later that night, the appellant took her to his office and had sexual intercourse with her against her will.
The next morning, he brought Mohini to the police station in his car. A police inspector searched the appellant’s bungalow on the night of January 16-17 but didn’t find Mohini there. The officer also checked the appellant’s office records to see if there was a payment entry of Rs. 250 to Mohini, as claimed by the appellant. On the night of January 17, a police sub-inspector searched the bungalow again and found Mohini, who was then sent for a medical examination. Her clothes and belongings were discovered in the appellant’s car. Based on this evidence, the prosecution charged the appellant with kidnapping and rape under Sections 361, 366, and 376 of the Indian Penal Code.
Issue
Whether the appellant is guilty of the offence under Section 366 of Indian Penal Code?
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Main Argument
The appellant argued that Mohini left her home because she was deeply unhappy and felt constantly harassed by her parents. He contended that Mohini sought his help as a last resort because she could no longer endure the mistreatment at home. The appellant emphasized that his actions towards Mohini were motivated purely by sympathy and compassion. He insisted that he was trying to provide her with a safe haven and support in her time of need.
According to the appellant, Mohini’s parents had developed baseless suspicions about her relationship with him. These suspicions, he argued, were entirely imaginary and without any foundation. Despite this, they led to severe and unjust treatment of Mohini by her parents. The appellant claimed that this harsh and unfair treatment was the main reason why Mohini decided to leave her home and seek refuge with him.
He further explained that he had always seen Mohini as a daughter and that his intentions were honourable. The appellant stated that Mohini’s parents’ constant accusations and their treatment of her as a guilty person without any evidence created an unbearable environment for her, and that Mohini had no other option but to come to him for help and that he was simply trying to provide her with the care and support she needed during such a troubling time.
The appellant maintained that his actions were misinterpreted and that he was wrongfully accused. He insisted that there was no improper relationship between him and Mohini and that his only concern was her well-being. He expressed that his actions were taken out of genuine concern for Mohini’s safety and happiness, given the difficult and hostile environment she was facing at home.Bottom of Form
Court’s Reasoning
The legal stance regarding an offence under Section 366 of the Indian Penal Code (IPC) is clear. In the case of State of Haryana v. Raja Ram[3], the Supreme Court interpreted Section 361 of the IPC. The Court explained that the purpose of this section is to protect minor children from being lured for wrongful purposes and to safeguard the rights of their lawful guardians. The key aspect of this offence is taking or enticing a minor, as defined by the section, away from their lawful guardian without the guardian’s consent.
The phrases “takes or entices any minor…out of the keeping of the lawful guardian” highlight this point. “Keeping” in this context means the guardian’s responsibility for the child’s care, protection, and control, which coexists with the child’s ability to act independently. Therefore, the minor’s consent is irrelevant; only the guardian’s consent matters. The offence does not require force or fraud; mere persuasion by the accused that makes the minor willing to leave the guardian’s custody is enough to constitute the crime.
The case references English decisions stating that even if the girl is willing or shows forwardness, it does not absolve the person taking her from being guilty. If the girl is persuaded to leave by promises or persuasion, it is considered within the scope of the law, unless she leaves entirely of her own will.
This principle is broadly similar under Indian law. The term “takes” in Section 361 does not imply force and is not limited to physical compulsion. It can simply mean causing the minor to go, escorting, or obtaining possession of the minor. It includes physical taking but does not necessarily involve force or fraud. The term “entice” implies inducing or alluring the minor by creating hope or desire.
Judgement
The judgement of the Court was given by DUA, J. After exhaustive judgement the High Court said that given the facts and circumstances, there was no other possible inference except that the appellant took Mohini away from her parents with the intention of attempting rape on her. This intention, as specified under Section 366 of the IPC, was clearly established, and therefore, the conviction of the appellant on Section 366 was deemed correct and upheld. The appellant was though acquitted the appellant of the offence under Section 376 IPC.
In this case, the way the appellant and Mohini became close, including the gifts he gave her and the letters she wrote to him, provided crucial context for the crime he committed.
The court observed that ‘’there is no scope for an inference other than the inference that Mohini was kidnapped from lawful guardianship, with an intention to seduce her to illicit intercourse. The intention contemplated by Section 366 of the Indian Penal Code is amply borne out by these circumstances. Therefore, the conviction of the appellant under that section is correct and has to be maintained.’’
Referring to Section 366 of the IPC, the case of State of Haryana v. Raja Ram (AIR 1973 SC 819) was cited, where the Court stated that the purpose of Section 361 is to protect minors from being led astray for improper purposes, as well as to protect the rights of guardians who have lawful custody of these minors. The essence of this offense lies in taking or enticing a minor away from their lawful guardian without the guardian’s consent.
The term ‘lawful guardian’ under Section 361 includes anyone legally entrusted with the care or custody of the minor. This section does not apply to a person who, in good faith, believes himself to be the father of an illegitimate child or believes he is entitled to lawful custody of the child unless the act is for an immoral or unlawful purpose. It is important to note that under this section, the consent of the minor is irrelevant; only the consent of the guardian can remove the case from the section’s scope.
The court further clarified that for an offense under Section 366 of the IPC, if a minor leaves their parent’s house due to any promise, offer, or inducement from the guilty party, that party is guilty of an offense under Section 361 of the IPC.
Conclusion
The case of Thakorlal D. Vadgama vs. State of Gujarat is an important example of how Indian law handles kidnapping and abduction, especially under Sections 361 and 366 of the Indian Penal Code. In this case, the High Court upheld the conviction of Thakorlal D. Vadgama under Section 366 for kidnapping Mohini with the intention of having an illegal sexual relationship. Even though Vadgama claimed he was trying to help Mohini out of kindness, the court decided that his actions were clearly wrong.
This case shows that the law is designed to protect minors and people under guardianship from being taken advantage of. The court made it clear that in these situations, the guardian’s consent is what matters most, not the minors. The ruling also highlights how important it is to respect the guardian’s rights and to stop people from misusing their power over vulnerable individuals. Overall, this case reminds us that the legal system works to protect those who can’t protect themselves and to ensure that justice is served.
REFRENCES
- https://www.casemine.com/judgement/in/5609ab96e4b014971140cd70
- https://www.delhilawacademy.com/thakorlal-d-vadgama-v-state-of-gujarat-1973-sc/
- file:///C:/Users/Administrator/Downloads/TP_1973_2_scc_413_424_fatimafaridi_samityedu_20240726_223914_1_12.pdf
[1] https://lddashboard.legislative.gov.in/sites/default/files/A1860-45.pdf
[2] https://lawrato.com/indian-kanoon/ipc/section-366
[3] A.I.R. 1973 S.C. 819
Author: Fatima Faridi, 2nd-year LL.B (Hons) student at Amity University, Noida.
